Ord 1889 - Amending and Adding Certain Sections of Recodiifed Chapter 13 Relating to the Storage of Hazardous Materials Clarifying Definitions, Granting and Enforcing Officer Authority To Issue Orders adn Establishing Review of Such OrdersORDINANCE 1889
ORDINANCE OF THE TOWN OF LOS GATOS
AMENDING AND ADDING CERTAIN SECTIONS OF RECODIFIED
CHAPTER 13 OF THE TOWN CODE RELATING TO THE STORAGE
OF HAZARDOUS MATERIALS CLARIFYING DEFINITIONS,
GRANTING THE ENFORCING OFFICER AUTHORITY TO
ISSUE ORDERS AND ESTABLISHING REVIEW OF SUCH ORDERS
THE TOWN COUNCIL OF THE TOWN OF LOS GATOS DOES HEREBY
CSI 17_112
SECTION I
Former Section 35.010.020 recodified as 13.20.015 is hereby amended to read as
follows:
Section 13.20.015. Definitions.
Unless otherwise expressly stated, whenever used in this Chapter, the following terms
shall have the meanings set forth below:
Abandoned, when referring to a past or present storage facility, means out of service
and not safeguarded in compliance with this Chapter.
Discharge means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, escaping, leaching, dumping, or disposing into the environment.
Environment means any surface water, ground water, drinking water supply, land
surface or subsurface strata, or ambient air within the Town of Los Gatos or under the
jurisdiction of the Town of Los Gatos.
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Enforcing officer means the agent designated by the Town to administer this Chapter,
or any designee of such agent.
Facility means a building or buildings, appurtenant structures, and surrounding land
area used by a single business entity at a single location or site.
Hazard class means Explosives A, Explosives B, Explosives C, Blasting Agents,
Flammable Liquids, Combustible liquids, Flammable solids, Oxidizers, Organic peroxides,
Corrosive materials, Flammable gases, Nonflammable gases, Poisons A, Poisons B, Irritating
materials, Etiologic agents, Radioactive materials, Other Regulated Materials, Etiologic
agents, Radioactive materials, Other Regulated Materials (ORM) A, B, C, D and E. For
purposes of this Chapter, the U.S. Department of Transportation (DOT) definitions in 49
CFR Part 173 refer to transportation or hazards associated with transportation, they shall
be deemed to refer to storage or other regulated activity under this Chapter.
Hazardous material means any material which is subject to regulation pursuant to
Article II of this Chapter. A mixture shall be deemed to be a hazardous material if it
either is a waste and contains any material regulated pursuant to Article 11 of this Chapter,
or is a nonwaste and contains one percent (1%) by volume or more of any material
regulated pursuant to Article 11 of this Chapter.
Permit means any Hazardous Materials Storage Permit issued pursuant to this
Chapter as well as any additional approvals thereto.
Permit quantity limit means the maximum amount of hazardous material that can
be stored in a storage facility. Separate permit quantity limits will be set for each storage
facility for which a permit is obtained in accordance with the requirements of this Chapter.
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Permitted discharge(s) means a discharge of any hazardous material expressly
permitted by and in full compliance with the provisions of this Chapter, or authorized and
in full compliance with the release regulations of the Bay Area Air Quality Management
District and California Air Resources Board, with a National Pollutant Discharge
Elimination System Permit, with waste discharge requirements established by the Regional
Water Quality Control Board pursuant to the Porter Cologne Water Quality Act, or with
local sewer pretreatment requirements for Publicly Owned Treatment Works.
Permittee means any person, firm, or corporation to whom a permit is issued
pursuant to this Chapter and any authorized representative, agent or designee of such
person, firm, or corporation.
Pipes means pipeline systems which are used in connection with the storage of
hazardous materials exclusively within the confines of a facility and which are not intended
to transport hazardous materials in interstate or intrastate commerce or to transfer
hazardous materials in bulk to or from a marine vessel.
Primary containment means the first level of containment, i.e., the inside portion of
that container which comes into immediate contact on its inner surface with the hazardous
material being contained.
Product -tight means impervious to the hazardous material which is contained, or is
to be contained, so as to prevent the seepage of the hazardous material from the primary
containment. To be product- tight, the container shall be made of a material that is not
subject to physical or chemical deterioration by the hazardous material being contained.
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Secondary containment means the level of containment external to and separate
from the primary containment.
Single- walled means construction with walls made of but one thickness of material.
Laminated, coated, or clad materials shall be considered as single- walled.
Storage facility means any one or combination of tanks, sumps, wet floors, waste-
treatment facilities, pipes, vaults or other portable or fixed containers, used, or designated
to be used, for the storage of hazardous materials at a facility.
Sump means a pit or well in which liquids collect.
Unauthorized discharge means any discharge except: 1) a permitted discharge; or 2)
a discharge into secondary containment provided that the responsible party complies in a
timely fashion with the reporting and clean -up provisions of Article VI for such discharge.
Wet floor means a floor which is used to routinely collect, contain or maintain
standing liquids or to transmit standing liquids on a more or less continuous basis.
SECTION II
Former Section 35.060.010 recodified as Section 13.20.560 is hereby amended to read
as follows:
Section 13.20.560. Cleanup responsibility.
(a) No unauthorized discharge of hazardous material shall occur at or from an
existing, closed or abandoned storage facility. Any person, firm or corporation whose past
or present handling, treatment, storage, transportation, management or disposal of any
hazardous material at any existing, closed, or abandoned storage facility is causing or
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contributing to a condition which presents a public nuisance, specifically including any
endangerment to public health, welfare or the environment, shall institute and complete all
actions necessary to fully and permanently abate such public nuisance and to remedy all
present and foreseeable adverse effects arising out of unauthorized discharge, whether
sudden or gradual. Enforcing Officer shall undertake actions to remedy the effects of such
public nuisance or unauthorized discharge itself, only if it determines that it is reasonably
necessary under the circumstances for the Enforcing Officer to do so. The Enforcing
Officer may issue orders as may be necessary to protect public health, welfare or the
environment. Such orders shall include a statement of the grounds upon which the order
is issued. Orders issued pursuant to this subdivision shall be personally served upon the
responsible party and shall inform the responsible party of the right to a hearing before the
Town Council. The responsible party shall be liable to reimburse the Town for all costs
incurred by the Town in remedying the effects of such public nuisance or unauthorized
discharge, including enforcement costs, and the costs of fighting fires to the extent allowed
by law. This responsibility is not conditioned upon evidence of willfulness or negligence of
the responsible party in causing or allowing such public nuisance or unauthorized discharge.
Any responsible party who undertakes action to remedy the effects of public nuisance or
unauthorized discharge(s) shall not be barred by this Chapter from seeking to recover
appropriate costs and expenditures from other responsible parties except as provided by
Section 13.20.565.
(b) A responsible party aggrieved by an order issued under subdivision (a), may
request a hearing before the Town Council to review such order. A written request for
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hearing must be filed with the Town Clerk within 10 days from the date of personal service
of the order. The request shall include the responsible party's address to which all notices
shall be sent.
(c) Orders issued under subdivision (a) shall take effect upon personal service on
the responsible party. Filing of a request for hearing before the Town Council shall stay
such order pending a decision of the Town Council, except as follows:
(1) If the order of the Enforcing Officer includes a finding that the
violation(s) addressed by any provision(s) of the order may pose an imminent and
substantial endangerment to public health, welfare, or the environment those provision(s)
shall not be stayed.
(2) If the order of the Enforcing Officer includes a finding that any or all
of its provisions are so inter - related that the public health, welfare, or the environment can
be protected only by immediate compliance with the order as a whole, then the order as
a whole shall not be stayed.
SECTION III
Section 13.20.890 is hereby added to Article XI as follows:
Section 13.20.890. Review of Orders.
Upon a request for hearing for review of an order issued by the Enforcing Officer
under any provision of this Chapter the following procedures shall apply:
(a) Notice of Hearing
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The Town Council shall send notice of the time and place of hearing to all
parties who request review, at least twenty -one (21) days prior to the hearing. The notice
shall be substantially in the following form but may include other information:
You are hereby notified that the requested hearing will be held before
the Town Council at [here insert place of hearing] on the day of
19 , at the hour of , on the order of the
Enforcement Officer dated and served on you on
A statement of the grounds upon which the order was issued is
enclosed herewith. You may be present at the bearing. You have the right
to be represented by an attorney at your own expense. You are not entitled
to the appointment of an attorney to represent you at public expense. You
are entitled to represent yourself without legal counsel. You may present
any relevant evidence, and will be given full opportunity to cross - examine all
witnesses testifying against you. [You are entitled to the issuance of
subpoenas to compel the attendance of witnesses and the production of books,
documents or other things by applying to the Town Council.]
(b) Statement of Issues and Positions. Not later than fifteen (15) days prior to
the hearing date, the party who requested the hearing shall submit to the Town Clerk a
brief written statement identifying: (1) the requested modification(s) of the Order; and
(2) a summary of the issues and facts to be raised at the hearing.
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Not less than seven (7) days prior to the hearing, the Enforcing Officer may submit
a brief written statement in response to the Town Clerk and serve it upon the party
requesting review.
(c) Conduct of Hearing.
(1) Oral evidence shall be taken only on oath or affirmation.
(2) Each party may call and examine witnesses, introduce exhibits, cross-
examine opposing witnesses on any matter relevant to the issues even though that matter
was not covered in the direct examination, impeach any witness regardless of which party
first called him to testify, and rebut adverse evidence.
(3) The hearing need not be conducted according to technical rules
relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort
of evidence on which responsible persons are accustomed to rely in the conduct of serious
affairs, regardless of the existence of any common law or statutory rule which might make
improper the admission of such evidence over objection in civil judicial actions. Hearsay
evidence may be used for the purpose of supplementing or explaining other evidence but
shall not be sufficient in itself to support a necessary finding unless it would be admissible
over objection in civil judicial actions. The rules of privilege shall be effective to the extent
that they are otherwise required by statute to be recognized at the hearing, and irrelevant
and unduly repetitious evidence shall be excluded.
(4) The Enforcing Officer shall have the initial burden of producing prima
facie evidence of the facts supporting the findings set forth in the order. Upon such a
showing, the responsible party has the burden of proving that the Enforcing Officer
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committed a prejudicial abuse of discretion in issuing the order. An abuse of discretion is
shown only where the Enforcement Officer failed to proceed in the manner required by law
or where the issuance of the order was arbitrary, capricious or without any reasonable basis.
(d) Decision. Within 30 days after the hearing is concluded, the Town Council
shall prepare a written decision which shall contain findings of fact, a determination of the
issues presented and the disposition of the order on review. Copies of the decision shall
be delivered in the manner set forth in Section 13.20.885. The decision shall become
effective upon personal service or 48 hours from the time of mailing unless the Town
Council orders that the decision shall become effective at a later date.
SECTION IV
Former Section 35.120.025 recodified as Section 13.20.175 is hereby amended to read
as follows:
Section 13.20.175. Remedies not exclusive.
Remedies under this section are in addition to and do not supersede or limit any
and all other remedies, civil or criminal. Nothing in this Chapter shall affect or modify in
any way the obligations or liabilities of any person under any other provision of State,
Federal or local law, including common law, for damages, injury, loss, or nuisance which
results from an unauthorized discharge of hazardous material into the environment.
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SECTION V
This ordinance takes effect 30 days after it is adopted. Within 15 days after this
ordinance is adopted, the Town Clerk shall cause it to be published once in a newspaper
of general circulation published and circulated in the Town.
This ordinance was introduced at a regular meeting of the Town Council of the
Town of Los Gatos on February 3, 1992, and adopted by the following vote as an ordinance
of the Town of Los Gatos at a regular meeting of the Town Council of the Town of Los
Gatos on February 18, 1992.
COUNCIL MEMBERS:
AYES: Randy Attaway, Joanne Benjamin, Steven Blanton,,
Mayor Eric D. Carlson
NAYS: None
ABSENT: None
ABSTAIN: Brent N. Ventura
c
Signed:'
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERK OF THE TOWN O OS GATOS
LOS GATOS, CALIFORNIA
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